Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 2015 CR 462
Plaintiff-Appellee: Atty. Ralph M. Rivera Assistant
Defendant-Appellant: Atty. Rhys B. Cartwright-Jones
JUDGES: Hon. Carol Ann Robb, Hon. Cheryl L. Waite, Hon. Mary
Defendant-Appellant Mark Lucicosky appeals the sentence
entered by the Mahoning County Common Pleas Court for his
convictions for attempted pandering obscenity involving a
minor and pandering obscenity involving a minor convictions.
Two issues are raised in this appeal. The first is whether
the trial court errored in imposing consecutive sentences.
The second issue is whether the offenses are allied offenses
of similar import and, if so, did the trial court err when it
failed to merge the offenses.
For the reasons expressed below, the trial court did not err
when it failed to merge the offenses. The trial court,
however, did fail to make the requisite consecutive sentence
findings. Accordingly, the sentence is vacated and the cause
is remanded for resentencing.
of the Case
Appellant was indicted for pandering obscenity involving a
minor. 5/14/15 Indictment. The first two counts of the
indictment were for violations of R.C. 2907.321(A)(2)(C),
pandering obscenity involving a minor, second-degree
felonies. Counts three through seventeen were for violations
of R.C. 2907.321(A)(5)(C), pandering obscenity involving a
minor, fourth-degree felonies.
In March 2016, Appellant and the state entered into a Crim.R.
11 agreement. 3/11/16 J.E. The state amended count one of the
indictment to attempted pandering obscenity involving a minor
in violation of R.C. 2923.02 and R.C. 2907.321(A)(2)(C), a
third-degree felony, and dismissed count two of the
indictment. 3/11/16 J.E. Appellant pled guilty to amended
count one and counts three through seventeen. 3/18/16 Crim.R.
11 Guilty Plea. The state recommended a 10-year sentence and
a Tier II sex offender registration. 3/18/16 Crim.R. 11
At the sentencing hearing, the state followed the plea
agreement and recommended a 10-year sentence. Sentencing Tr.
5. The state argued a 10-year sentence was warranted because
the National Center for Missing and Exploited Children was
able to identify 27 children in Appellant's collection of
child pornography, and each of those children were victims.
Sentencing Tr. 3-4. Appellant argued the offenses should
merge and asked for a lesser sentence. Sentencing Tr. 8-15.
The trial court sentenced Appellant to an aggregate
eight-year sentence. He received three years on count one and
one year on counts three through seventeen. The one-year
sentences on counts three through seven were ordered to run
consecutive to each other and consecutive to the three-year
sentence on count one. The one-year sentences on counts eight
through seventeen were ordered to run concurrent to each
other and concurrent to all other sentences imposed.
Sentencing Tr. 19.
Appellant timely appeals the sentence.
Assignment of Error Consecutive Sentences
trial court erred in imposing consecutive sentences, totaling
8 years, because the record does not contain any evidence of
a pattern ...